Opinion
CIVIL 1:20-CR-668
10-15-2021
ALFONSO PERCY PEW, Plaintiff. v. JOHN WETZEL, et al., Defendants.
Brann Chief Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Statement of Facts and of the Case
Alfonso Pew is a state inmate and a prolific, if prodigiously unsuccessful, pro se litigant. As a result of this history of feckless litigation, Pew acknowledges that he has had more than three cases dismissed as frivolous, and is thus generally barred from filing civil lawsuits in forma pauperis under 28 U.S.C. § 1915(g), unless he alleges that he is under imminent danger of serious physical injury. Pew's prior litigative forays have often been marked by several recurring themes: frivolous legal claims; the conflation of unrelated claims into a single sweeping lawsuit; and a pattern of delay and detours by Pew which have complicated the fair and timely resolution of his claims.
So it is here.
On April 22, 2020, Pew filed the instant case, naming approximately thirty-five individual and institutional defendants, and sought leave to proceed in forma pauperis, alleging that he faces imminent and serious bodily injury. (Doc. 1). Pew's complaint, however, included a confection of claims, many of which plainly did not involve any imminent risk of bodily injury. Thus, while Pew alleged that some of the matters in his complaint involve imminent danger of serious physical injury, it was evident that many of these disparate claims simply do not entail matters of immediate physical concern.
Along with this conflated complaint, Pew filed a motion for leave to proceed in forma pauperis, which candidly acknowledged that he had incurred three strikes under § 1915(g), but nonetheless sought leave to file as a pauper due to his alleged threat of imminent bodily injury on some of these allegations. (Doc. 2). Acting out of an abundance of caution we conditionally granted this request “subject to any defense motion to revoke leave to proceed in forma pauperis.” (Doc. 13).
The defendants then filed a motion to revoke Pew's in forma pauperis status, alleging that he had failed to bring his claims within the limited safe harbor provided by § 1915(g) for claims entailing imminent danger of serious physical injury. (Doc. 24). Pew, in turn, filed a pleading styled as a motion in opposition to this motion to revoke in forma pauperis status (Doc. 35), which opposed this defense request and has filed motion demanding a teleconference in this case. (Doc. 38). Because Pew- who is undeniably subject to § 1915(g)'s three strike prohibition-improperly conflated and combined claims which arguably fall within the imminent danger of serious physical injury exception to this statutory rule with claims which plainly did not, we recommended that Pew should be directed to file an amended complaint setting forth only those claims which he alleges entail imminent danger of serious bodily injury. (Doc. 39). This recommendation was adopted by the district court and this case was remanded to us for further proceedings. (Doc. 43).
After nearly four months of delays, Pew filed a document which we have construed as an amended complaint. (Doc. 61, 72). Despite the court's prior admonition that Pew needed to narrow his claims to those which involved imminent danger of serious injury, this 114 page pleading actually seems to broaden Pew's claims. (Id.) In its current form, Pew's amended complaint appears to name approximately forty-three individual, institutional, and collective defendants. Many of these defendants are prison supervisors who had no direct involvement in the matters alleged by Pew and appear to be included in Pew's amended complaint simply because they have considered and rejected past grievances submitted by Pew.
While the amended complaint and exhibits defy any succinct description, in general terms, Pew appears to advance Eighth Amendment medical indifference claims, coupled with alleged state constitutional and common law violations, as well as federal statutory claims under the Americans with Disabilities Act (“ADA”), the Religious Land Use Institutionalize Persons Act (“RLUIPA”) and associated First Amendment claims. The factual averments made in support of these claims are striking in several respects. First, Pew's medical complaints run the gamut and include many concerns which cannot reasonably be seen as entailing any imminent danger of serious physical injury. For example, Pew asserts that he has experienced ingrown facial hairs, a condition which, while perhaps unsightly and uncomfortable, is hardly life threatening. (Id. ¶¶ 88-94). Likewise, Pew professes to be a vegan but alleges that he has been served eggs, fish, cheese, turkey, and milk, foodstuffs which do not appear to present an imminent threat to life. (Id. ¶¶ 99-104).
Pew's amended complaint then asserts an array of other medical concerns, but often couches those concerns in terms which makes it apparent that Pew is receiving care, but simply disagrees with the care he is receiving. For example, while his amended complaint details the care and treatment he has received, (Id. ¶¶ 49, 51, 52, 58, 63, 71, 72; Exhibits A, K, R, S), Pew finds fault with certain aspects of that health care. According to Pew, he has a kidney disease and wishes to receive “milk thistle” as a treatment, but prison medical staff have opted for a different course of treatment. (Id. ¶¶ 49 and 56). Pew also receives a multi-vitamin, but it is not the specific vitamin he wishes to be prescribed. (Id. ¶ 59, 60, 63). Moreover, Pew is treated for hypertension but has not received the Fit Bit and raw garlic clove he has requested. (Id. ¶¶ 69, 73-75). Pew experiences arthritis, which he believes justifies his receipt of a word processor or typewriter, but this request has not been approved. (Id. ¶¶ 118-121). Similarly, Pew complains that he has not received particular forms of treatment for various physical and emotional maladies, but seems to acknowledge that he has received other, alternate forms of care for these conditions.
Further, in some instances the exhibits which Pew has appended to his amended complaint appear to contradict the allegations set forth in the amended complaint. For example, Pew alleges that his blood pressure is not being monitored but includes medical records which contain blood pressure readings. In the same vein, Pew protests that he has been forced to eat meat products as a vegan but has attached to his amended complaint documents indicating that he purchases meat products from the prison commissary even though vegan food options are available from the commissary. (Id. Ex. 22).
Presented with this array of concerns and complaints, the defendants have renewed their motion to deny Pew in forma pauperis status and have moved to dismiss this complaint. (Docs. 74 and 76). These motions are fully briefed and are ripe for resolution. For the reasons set forth below, it is recommended that the motions be granted.
II. Discussion
A. 28 U.S.C. § 1915(g)B The Legal Standard
The defendants have renewed their request that Pew's in forma pauperis status be revoked. Under the Prison Litigation Reform Act, this Court has an affirmative duty to screen and review prisoner complaints filed by inmates who seek leave to proceed in forma pauperis. 28 U.S.C. § 1915A. One aspect of this review, a review “designed to filter out the bad claims and facilitate consideration of the good, ” Jones v. Bock, 549 U.S. 199, 204 (2007), entails ensuring that inmates who have abused this privilege in the past are not permitted to persist in further in forma pauperis litigation. Towards that end, Congress enacted 28 U.S.C. § 1915(g), which provides in pertinent part that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
Congress enacted 28 U.S.C. § 1915(g) with the express purpose of “[d]eterring frivolous prisoner filings in the federal courts [a goal which] falls within the realm of Congress' legitimate interests.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 318-19 (3d Cir. 2001). With this goal in mind, it is well-settled that, “generally, a prisoner may not be granted IFP [in forma pauperis] status if, on three or more occasions, he brought an action that was dismissed as frivolous, ” Brown v. City Of Philadelphia, 331 Fed.Appx. 898, 899, (3d Cir. 2009), and inmates who attempt to bring such lawsuits in forma pauperis should have their complaints dismissed. Id. Notably, this provision of federal law does not deny the inmate who has been found to be a repeat frivolous filer the right to file new cases; it only conditions that right upon the payment of the filing fee.
In determining whether a particular inmate-plaintiff has had three prior dismissals, or “three strikes, ” under § 1915(g), we look to the status of the plaintiff's prior litigation history at the time he filed the current lawsuit. Thus, only dismissals which were actually ordered at the time of the filing of the instant case are counted towards a “three strike” assessment under § 1915(g), and “[a] dismissal does not qualify as a ‘strike' for § 1915(g) purposes unless and until a litigant has exhausted or waived his or her appellate rights. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); Lopez v. U.S. Dept. of Justice, 228 Fed.Appx. 218 (3d Cir. 2007). However, in assessing when a particular inmate plaintiff is subject to the gatekeeping provisions of § 1915(g), it is also clear that “lawsuits dismissed as frivolous prior to the enactment of the PLRA count as ‘strikes' under § 1915(g).” Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir. 1997) (citing Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996)); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996).
The grounds of dismissal cited by the court in its dismissal orders are also significant in this setting. Section 1915(g) provides that the preclusive effect of this three strikes rule only applies where each of the prior cases “was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. As the Third Circuit has observed: “a strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,' ‘malicious,' or ‘fails to state a claim' or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(I), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013).
In this case, it is undisputed that Pew's extensive history of frivolous litigation has now resulted in three strikes against this prisoner-plaintiff. Indeed, Pew concedes as much. Therefore, Pew has only a limited pathway available to him if he wishes to file further lawsuits without paying the filing fee mandated by statute. Once it is determined that an inmate-plaintiff has had at least three prior lawsuits dismissed “on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted, ” 28 U.S.C. § 1915(g) compels denial of in forma pauperis status and dismissal of in forma pauperis lawsuits unless the inmate alleges that he or she “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). With respect to this specific statutory exception, it is clear that:
The clause “unless he is in imminent danger of serious physical injury” is an exception to the preclusive effect of the statute. But the exception is cast in the present tense, not in the past tense, and the word “is” in the exception refers back to the same point in time as the first clause, i.e., the time of filing. The statute contemplates that the “imminent danger” will exist contemporaneously with the bringing of the action. Someone whose danger has passed cannot reasonably be described as someone who “is” in danger, nor can that past danger reasonably be described as “imminent.”Abdul-Akbar v. McKelvie, 239 F.3d at 313. Moreover, in making this assessment of imminent danger:
A court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit “factual claims of imminent danger that are ‘clearly baseless,' i.e., allegations that are
fantastic or delusional and rise to the level of the ‘irrational or wholly incredible.'” Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The Supreme Court has directed that, in assessing a case under 28 U.S.C. § 1915, we are not required to accept without question the truth of the plaintiff's allegations. See Denton, 504 U.S. at 32. Rather, we may be guided by judicially noticeable facts in determining whether the allegations are baseless or wholly incredible.Brown v. City Of Philadelphia, 331 Fed.Appx. at 900.
Further, on this score, when weighing the imminence of a danger we are enjoined that:
“‘Imminent' dangers are those dangers which are about to occur at any moment or are impending.” Id. “By using the term ‘imminent,' Congress indicated that it wanted to ... prevent impending harms, not those harms that had already occurred.” Id.; see also Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“Congress' use of the present tense in § 1915(g) confirms that a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis....”). The danger must also be imminent at the time the complaint or appeal is filed. See Abdul-Akbar, 239 F.3d at 312 (“[A] prisoner may invoke the ‘imminent danger' exception only to seek relief from a danger which is ‘imminent' at the time the complaint is filed.”); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (“[T]he language of § 1915(g), by using the present tense, clearly refers to the time when the action or appeal is filed....”).
Although § 1915(g)'s “imminent danger” exception might appear clear in theory, in practice it represents an “amorphous standard.” Ciarpaglini, 352 F.3d at 331. Courts have found imminent danger when a prisoner was placed near enemies who had beaten him, Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998), when a prisoner suffered headaches and other symptoms as a result of exposure to dust and lint, Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998), and when a prisoner
needed dental care due to an oral infection, McAlphin v. Toney, 281 F.3d 709 (8th Cir. 2002). The denial or withdrawal of needed medications can also constitute an imminent danger. See, e.g., Brown v. Johnson, 387 F.3d 1344, 1346 (11th Cir. 2004) (withdrawal of medications for HIV and hepatitis); Ciarpaglini, 352 F.3d at 330 (denial of medication for bipolar, attention deficit, and panic disorders).
But “[c]ourts ... deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous.” Ciarpaglini, 352 F.3d at 331. For example, complaining two years later of inadequate protection from reprisals by other prisoners can hardly be said to be an allegation of “imminent” danger, Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003), just as working in inclement weather may not be “danger” at all, Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Courts also reject imminent danger claims when a prisoner alleges only a past injury that has not recurred. See, e.g., Abdul-Akbar, 239 F.3d at 315 (concluding that being sprayed with pepper spray on one occasion is not imminent danger); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996) (concluding that being given Ibuprofen instead of a stronger pain medication for an injury that had already healed is not imminent danger). And “vague and utterly conclusory” assertions that medical treatment has been withheld, particularly when a prisoner has been seen repeatedly by a physician, do not amount to a showing of imminent danger. White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998).Ball v. Famiglio, 726 F.3d 448, 467-68 (3d Cir. 2013) abrogated in part on other grounds by Coleman v. Tollefson__U.S.__, 135 U.S. 1759, 1763 (2015).
We must also be mindful that inmate allegations of imminent danger of serious bodily injury, while grave, may be used as “a tactic to circumvent section 1915(g).” Brown v. Beard, 492 F.Supp.2d 474, 477 (E.D. Pa. 2007). This caution is particularly appropriate here, where Pew has plainly combined and conflated a hodgepodge of disparate claims, many of which do not allege any imminent risk of serious bodily harm, into a single sweeping complaint. Indeed, we have previously warned Pew that this style of pleading is improper, telling him in clear and precise terms that:
Furthermore, Pew's unrelated claims of misconduct involve allegations of distinct acts committed by disparate parties at widely different times and places. Thus, there is no single, coherent legal, logical, topical or temporal connection between these various claims. Without some further articulation of a unifying theme or thread between these claims, the joinder of these plainly divergent claims in a single lawsuit is inappropriate under Rule 20 of the Federal Rules of Civil Procedure, the rule governing joinder of defendants in federal litigation, which provides, in part, that:
Person[s] ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.Fed. R.Civ. P., Rule 20(a)(2).
In this case, it cannot be said from the proposed second amended complaint that these remaining allegations arise out of the same transaction, occurrence or series of transactions or occurrences. Quite the contrary, these episodes appear to be separate transactions, allegedly committed by different actors at divergent times and places. “[G]iven the hodgepodge of claims raised in the ... complaint, ” Boretsky v. Governor of New Jersey, 433 Fed.Appx. 73, 77 (3d Cir. 2011), this Court may properly, in the exercise of its discretion, dismiss
this amended complaint, and require Pew to file separate complaints relating to what seem to be factually distinct claims. Id.
This course is particularly appropriate here, since Pew's efforts to file these unrelated claims as an amended or supplemental complaint seem little more than a thinly transparent effort to avoid the fact that Pew is barred by § 1915(g) from filing further in forma pauperis lawsuit absent a showing of imminent danger since that it has been established that the plaintiff has undeniably had three prior cases dismissed “on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). We should not permit Pew to evade the consequences of his own past history of frivolous litigation through the simple expedient of bundling unrelated claims, of unknown merit, into an incomprehensible gestalt which Pew captions as an amended and supplemental complaint.Pew v. Boggio, No. 3:15-CV-1042, 2016 WL 3024947, at *9 (M.D. Pa. May 4, 2016), report and recommendation adopted, No. 3:15-CV-1042, 2016 WL 3001136 (M.D. Pa. May 25, 2016).
B. Motion to Dismiss - Standard of Review
The defendants have also filed a motion to dismiss Pew's amended complaint.
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[After Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
C. Eighth Amendment Medical Claims-Standard of Review
In this case, the gravamen of Pew's amended complaint is that prison officials violated his rights under the Eighth Amendment to the United States Constitution by displaying “deliberate indifference” to his medical needs. Pew faces an exacting burden in advancing this Eighth Amendment claim against prison officials in their individual capacities. To sustain such a claim, Pew must:
[M]eet two requirements: (1) the deprivation alleged must be, objectively, sufficiently serious; and (2) the prison official must have a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, “that state of mind is one of deliberate indifference” to inmate health or safety.” Id. “Deliberate indifference” is a subjective standard under Farmer-the prison official defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. In the medical context, a constitutional violation under the Eighth Amendment occurs only when state officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976). To establish a violation of his constitutional right to adequate medical care in a prison setting, Pew is required to point to evidence that demonstrates both (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or by “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000) (“courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care”). Thus, such complaints fail as constitutional claims under § 1983 since Athe exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ('[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.'); Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997). Applying this exacting standard, courts have frequently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received, see, e.g., Ham v. Greer, 269 Fed.Appx. 149 (3d Cir. 2008); James v. Dep't of Corrections, 230 Fed.Appx. 195 (3d. Cir. 2007); Gillespie v. Hogan, 182 Fed.Appx. 103 (3d Cir. 2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997), particularly where it can be shown that significant medical services were provided to the inmate but the prisoner is dissatisfied with the outcome of these services. Instead, courts have defined the precise burden which an inmate must sustain in order to advance an Eighth Amendment claim against a healthcare professional premised on allegedly inadequate care, stating that:
The district court [may] properly dis[miss an] Eighth Amendment claim, as it concerned [a care giver], because [the] allegations merely amounted to a disagreement over the proper course of his treatment and thus failed to allege a reckless disregard with respect to his . . . care. The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. “It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute 'deliberate indifference.' ” “Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation.” ....[The inmate] alleged no undue delay in receiving treatment and, as the district court noted, the evidence he presented established that he received timely care ....Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.James, 230 Fed.Appx.. at 197-198 (citations omitted).
In short, in the context of the Eighth Amendment, any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
Furthermore, it is well-settled that an inmate's dissatisfaction or disagreement with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed.Appx. 228, 229 (8th Cir.2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment for hernias and decision not to schedule a doctor's appointment); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir.1996) (inmate's disagreement with selection of medicine and therapy for sickle cell anemia falls well short of demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th Cir.1994) (inmate's Adesire for a replacement joint instead of fusion surgery is merely a disagreement with the course of medical treatment and does not state a constitutional claim”); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir.1994) (prison provided escalating level of treatment for inmates' ailments over time, and inmate's disagreement with course of medical treatment was insufficient basis for Eighth Amendment violation); Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir.1993) (inmate's mere disagreement with doctor's informed decision to delay surgery does not establish Eighth Amendment claim); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990) (inmate failed to prove deliberate indifference where his complaints represented nothing more than mere disagreement with course of his medical treatment); Lair v. Oglesby, 859 F.2d 605, 606 (8th Cir.1988) (disagreement about whether doctor should have prescribed medication does not result in constitutional violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985) (inmate failed to state facts indicating doctor deliberately disregarded his medical problem; inmate's disagreement as to proper medical treatment does not give rise to Eighth Amendment violation). Therefore, where a dispute in essence entails no more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as constitutional claims under § 1983 since “the exercise by a doctor of his professional judgment is never deliberate indifference. “ Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citations omitted).
There is a necessary corollary to this principle, limiting the reach of the Eighth Amendment in a prison medical setting. In a case such as this, where the plaintiff's complaint reflects that an inmate received some level of on-going medical care, it is also well-established that non-medical correctional staff may not be “considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Durmer v. O'Carroll, 991 F.2d 64, 69 (3d. Cir. 1993). The rationale for this rule has been aptly explained by the United States Court of Appeals for the Third Circuit in the following terms:
If a prisoner is under the care of medical experts . . ., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, non-
medical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability. Accordingly, we conclude that, absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.Spruill v. Gillis, 372 F.3d 218, 236 (3d. Cir. 2004).
Oftentimes there is a factual overlap between the § 1915(g) inquiry into whether an inmate who is subject to the statute's three strikes provision faces imminent danger of serious bodily injury, and the Eighth Amendment's deliberate indifference standard since medical deliberate indifference can create substantial danger of serious bodily injury. However, given the distinct legal interests vindicated by § 1915(g) and the Eighth Amendment, we are obliged to separately assess these claims.
It is against these benchmarks that we consider Pew's amended complaint.
D. Application of § 1915(g)'s Three Strike Rule to Pew's Amended Complaint
Applying these legal benchmarks governing § 1915(g)'s three strikes rule to this amended complaint, we find that Pew has continued to do precisely what we told him he could not do: he has attempted to “evade the consequences of his own past history of frivolous litigation through the simple expedient of bundling unrelated claims, of unknown merit, into an incomprehensible gestalt.” Pew v. Boggio, No. 3:15-CV-1042, 2016 WL 3024947, at *9 (M.D. Pa. May 4, 2016), report and recommendation adopted, No. 3:15-CV-1042, 2016 WL 3001136 (M.D. Pa. May 25, 2016). This conduct is a transparent “tactic to circumvent section 1915(g), ” Brown v. Beard, 492 F.Supp.2d 474, 477 (E.D. Pa. 2007), and is plainly designed to “avoid the fact that Pew is barred by § 1915(g) from filing further in forma pauperis lawsuit absent a showing of imminent danger since that it has been established that the plaintiff has undeniably had three prior cases dismissed ‘on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.'” Pew, 2016 WL 3024947, at *9 (quoting § 1915(g)).
It is clear that many of Pew's allegations simply do not satisfy the exacting threshold prescribed by § 1915(g), in that they do not entail imminent threats to Pew's life or well-being. For example, Pew's complaints regarding ingrown facial hairs plainly do not satisfy this limited exception to the statute's three strikes rule. Likewise, it cannot be said that the refusal of prison officials to give Pew a typewriter, or Pew's concerns that he has been fed turkey, fish, eggs, cheese, or milk rise to the level of imminent dangers.
In particular, we find Pew's vegan diet imminent danger claim to be unavailing. Even if, as Pew alleges in a cursory fashion, the food he has received violated some religious tenet held by the plaintiff, he simply has not alleged that this diet presented some imminent danger of serious bodily injury.
In the setting of inmate diet claims, prisoner plaintiffs typically attempt to demonstrate an imminent danger of serious bodily injury by showing they are receiving inadequate sustenance. Ironically, Pew attempts to carry his burden of proof and persuasion on this issue by asserting that he is slightly overweight, alleging that he weighs 215 pounds and has a Body Mass. Index (BMI) of 30. (Doc. 72 ¶ 110). In our view, these averments fail to demonstrate imminent danger of serious bodily injury for several reasons.
First, we find that Pew's report that his is slightly obese does not constitute an imminent danger of serious bodily injury for purposes of § 1915(g). Indeed, we note that in other similar correctional contexts, courts have repeatedly rejected requests for favorable treatment from prisoners based upon claims of mild obesity. United States v. Elliott, No. 17-CR-128 (ARR), 2020 WL 4381810, at *5 (E.D.N.Y. July 31, 2020) (denying request for compassionate release by mildly obese inmate, collecting cases).
Second, there is no legal or logical nexus between Pew's legal claims and his assertion that he faces imminent danger of serious bodily injury due to his mild obesity. At bottom, Pew complains about the types of food offered to him, objecting to receiving fish, turkey, eggs, milk, or cheese. However, to the extent that Pew may be mildly obese, that condition is likely a consequence of the quantities he eats, and not the types of food consumed.
Finally, the fact that exhibits attached by Pew to his complaint indicate that he buys the very foodstuffs he protests from the prison commissary, eschewing the vegan offerings at the commissary, fatally undermines this assertion that he faces imminent danger due to his diet. Indeed, given this undisputed fact, in order to credit Pew's claim of imminent danger we would have to view his commissary purchases as some sort of implicit culinary suicide pact on the plaintiff's part. This we cannot do.
Because we conclude that these vegan diet claims do not satisfy the requirements of §1915(g) we do not reach the merits of Pew's RLIUPA and First Amendment claims. We note, however, that Pew remains entirely free to pursue those claims, either by paying the filing fee or through the simple expedient of bringing actions in the appropriate courts to enforce what he claims were prior settlement agreements which afforded him a vegan diet.
Moreover, we have previously informed Pew that this type of litigation which conflates trivial and allegedly grave concerns into a single gestalt in order to avoid the requirements of § 1915(g) is improper, but to no avail. The plaintiff continues to present claims that plainly do not meet the requirements of § 1915(g). The court should not countenance or reward this manipulative behavior by a past frivolous filer. Therefore, it is recommended that the defendants' motion to revoke Pew's in forma pauperis status be granted. Pew should be instructed to either pay the filing fee prescribed by law or only file a new lawsuit which only sets forth claims which entail imminent danger of serious bodily injury.
E. Many of Pew's Claims Are Also Subject to Dismissal
Beyond the threshold problem of Pew's continuing evasion and avoidance of the strictures of § 1915(g), it is evident that many of the allegations in this amended complaint simply fail to state a claim upon which relief may be granted. The legal infirmities in these claims are discussed separately below.
1. Many of Pew's Eighth Amendment Claims Fail
At the outset, in many instances Pew has failed to state a colorable claim of medical deliberate indifference in violation of the Eighth Amendment to the United States Constitution. Even when we construe this amended complaint liberally, as we are required to do, a host of these medical claims fail as a matter of law for a variety of reasons.
At the outset, the Eighth Amendment only applies when there is deliberate indifference to a “serious medical need.” “A medical need is ‘serious,' . . . if it is ‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Judged by these standards we question whether the minor rash and ingrown facial hairs reported by Pew rise to the level of a constitutionally significant serious medical need.
But in any event, the Eighth Amendment's prohibition on cruel and unusual punishment is only triggered when there is deliberate indifference to serious medical needs. Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain, ” Estelle, 429 U.S. at 104, evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or by “persistent conduct in the face of resultant pain and risk of permanent injury, ” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). Given this definition of deliberate indifference for purposes of the Eighth Amendment, courts have repeatedly held that when an inmate's claim entails nothing more than a mere disagreement concerning which type of medication to prescribe for a particular ailment, prison officials are entitled to a judgment in their favor as a matter of law. See e.g., Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir.2009); Innis v. Wilson, 334 Fed.Appx. 454 (3d Cir.2009); Rozzelle v. Rossi, 307 Fed.Appx. 640 (3d Cir.2008); Whooten v. Bussanich, 248 Fed.Appx. 324 (3d Cir.2007); Ascenzi v. Diaz, 247 Fed.Appx. 390 (3d Cir. 2007).
Many of Pew's allegations as set forth in his amended complaint involve precisely this sort of disagreement between an inmate and his caregivers regarding the proper course of treatment for various maladies. For example, Pew, who allegedly has a kidney disease and wishes to receive “milk thistle” as a treatment, but prison medical staff have opted for a different course of treatment. Likewise, Pew is dissatisfied with the type of multi-vitamin prescribed for him; has hypertension but has not received the Fit Bit and raw garlic clove he has requested; and experiences arthritis, which he believes justifies his receipt of a word processor or typewriter, but this request has not been approved. None of these disagreements regarding the course of his medical treatment in the prison rises to the level of deliberate indifference to his serious medical needs since Pew's amended complaint simply describes a dispute regarding the best course of treatment for this prisoner. Since Pew does not have a constitutional right to have this court prescribe his preferred course of treatment, these claims fail as a matter of law and should be dismissed.
Moreover, Pew's Eighth Amendment claims are often cast in global terms, with the plaintiff listing a wide array of medical and non-medical correctional staff as defendants on these medical deliberate indifference claims. To the extent that Pew seeks to hold non-medical correctional staff constitutionally culpable for these Eighth Amendment claims relating to medical treatment decisions these allegations fail since it is well-established that non-medical correctional staff may not be “considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Durmer, 991 F.2d at 69. Therefore these non-medical correctional staff are entitled to be dismissed from these claims.
2. Pew Fails to State Supervisory Liability Claims
The sweeping scope of Pew's amended complaint also embraces a host of supervisory officials ranging from the Secretary of the Department of Corrections to senior administrative and correctional staff, many of whom appear to have had no direct involvement in the events described in this pleading beyond perhaps receiving grievances after-the-fact from Pew.
This form of pleading will not do to establish supervisory liability for constitutional torts. Section 1983 provides a private cause of action for the violation of a federal constitutional right. The text of the statute provides, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...42 U.S.C. § 1983. In order to prevail on a § 1983 claim, a plaintiff must establish that the defendant deprived the plaintiff of a right secured by the United States Constitution while acting under color of state law. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
The defendants in this case argue that the plaintiff has failed to plead allegations of their direct, personal involvement with the events at issue. Indeed, to state a § 1983 claim against supervisory defendants, a plaintiff must show that these supervisory defendants actively deprived her of a right secured by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902, 907 (3d Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). It is well settled that “[a] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Applying these benchmarks, courts have frequently held that, without allegations of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. O'Connell v. Sobina, No. 06-238, 2008 WL 144199, at *21 (W.D. Pa. Jan. 11, 2008); Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W.D. Pa. 2004).
With respect to supervisory liability claims, the Third Circuit has noted that “[n]umerous courts, including this one, have expressed uncertainty as to the viability and scope of supervisory liability after Iqbal.” Bistrian v. Levi, 696 F.3d 352, 366 n. 5 (3d Cir. 2012) (internal quotations and citations omitted). To the extent that supervisory liability survives after Iqbal, the scope of that liability is clearly and narrowly defined. On this score, there are two theories of supervisory liability which the Court of Appeals has recognized:
[O]ne under which supervisors can be liable if they “established and maintained a policy, practice or custom which directly cause [the] constitutional harm” and another under which they can be liable if they “participated in violating plaintiff's rights, directed others to violate them, or as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (second alteration in original).Santiago, 629 F.3d at 129.
To incur liability as a supervisory official, it “is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). The imposition of liability in a § 1983 action relies on a showing by the plaintiff that the defendants had “personal involvement in the alleged wrongs.” Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir. 2015) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)). Importantly, a plaintiff “cannot predicate defendants' liability on a respondeat superior theory.” Id.
Furthermore, to the extent that Pew's supervisory liability claims rest on the premise that these officials did not after-the-fact act favorably upon his past grievances, this claim also fails. An inmate cannot sustain a constitutional tort claim against prison supervisors based solely upon assertions that officials failed to adequately investigate or respond to his past grievances. Inmates do not have a constitutional right to a prison grievance system. Speight v. Sims, 283 Fed.Appx. 880 (3d Cir. 2008). Consequently, a prisoner's dissatisfaction with a response to an inmate's grievances does not support a constitutional claim. As the Third Circuit observed when disposing of a similar claim by another inmate:
Several named defendants, such as the Secretaries of the Department of Corrections or Superintendents, were named only for their supervisory roles in the prison system. The District Court properly dismissed these defendants and any additional defendants who were sued based on their failure to take corrective action when grievances or
investigations were referred to them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.1996) (state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause).Pressley v. Beard, 266 Fed.Appx. 216, 218 (3d Cir.2008).
Indeed, as to such claims, the Court of Appeals has held that summary dismissal is appropriate “because there is no apparent obligation for prison officials to investigate prison grievances. See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382 (2d Cir. 1973).” Paluch v. Sec'y Pennsylvania Dept. Corr., 442 Fed.Appx. 690, 695 (3d Cir. 2011). Therefore, these supervisory liability claims also fail as a matter of law and should be dismissed.
3. The Pennsylvania Constitution Does Not Provide a Private Right of Action
Pew has also cited alleged violations of the Pennsylvania Constitution in his amended complaint, apparently under the mistaken believe that these state constitutional provisions allow for some private right of action on the part of state prisoners. These state constitutional claims all fail for a single, simple reason:
The prevailing view in this circuit is that “Pennsylvania does not recognize a private right of action for damages in a suit alleging violation of the Pennsylvania Constitution.” Gary v. Braddock Cemetery, 517 F.3d 195, 207 n. 4 (3d Cir.2008); see also Farrell v. County of Montgomery, No. 05-3593, 2006 WL 166519, at *3 (E.D.Pa. Jan. 18, 2006);
Kaucher v. County of Bucks, No. 03-1212, 2005 WL 283628, at *11 (E.D.Pa. Feb. 7, 2005).Hamilton v. Spriggle, 965 F.Supp.2d 550, 577 (M.D. Pa. 2013). Therefore, Pew's state constitutional claims should also be summarily dismissed.
4. Pew's State Law Tort Claims Are Barred by Sovereign Immunity
Pew's efforts to graft state common law tort claims onto this amended complaint are also unavailing. The defendants are plainly entitled to raise the bar of sovereign immunity as a defense to these state law claims since it is beyond dispute that: “The Department of Corrections is an agency of the Commonwealth and the defendants, as employees of an agency of the Commonwealth, are entitled to the protection afforded by sovereign immunity.” McGrath v. Johnson, 67 F.Supp.2d 499, 511 (E.D. Pa. 1999) (citing Maute v. Frank, 441 Pa. Super. 401, 402, 657 A.2d 985, 986 (1995) (state prison officials enjoy sovereign immunity); Robles v. Pennsylvania Dept. of Corrections, 718 A.2d 882, 884 (Pa. Cmwlth. Ct. 1998) (same)), affd, 35 Fed.Appx. 357 (3d Cir. 2002). Moreover, this:
sovereign immunity . . . stems from the familiar proposition that the Commonwealth and its employees and officials enjoy broad immunity from most state law claims, immunity that is expressly embraced by statute, which provides that: “it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to
enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa.C.S.A. § 2310; see also Moore v. Commonwealth, 114 Pa.Cmwlth. 56, 538 A.2d 111, 115 (Pa. Commw. 1988) (“In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune”). This grant of immunity “applies to Commonwealth employees in both their official and individual capacities, so long as the employees are ‘acting within the scope of their duties.'” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). Conduct of an employee is within the scope of employment if “‘it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits....'” Brautigam v. Fraley, No. 09-1723, 2010 WL 480856, *4 (M.D. Pa. Feb.4, 2010) (Rambo, J.)Thomas v. Shutika, No. 4:12-CV-692, 2014 WL 2514817, at *7 (M.D. Pa. June 4, 2014). Therefore, subject only to nine statutory exceptions, none of which have any application here, this sovereign immunity bars state law tort claims like those alleged by Pew since Commonwealth employees are immune from liability even for intentional torts. McGrath v. Johnson, 67 F.Supp.2d 499, 511 (E.D. Pa. 1999), affd, 35 Fed.Appx. 357 (3d Cir. 2002). Accordingly, these pendent state tort claims should also be dismissed.
5. Pew's Federal ADA Claim Fails as a Matter of Law
Finally, in his amended complaint, Pew also seeks to bring a claim under the Americans With Disabilities Act, (ADA) 42 U.S.C. § 12101. This ADA claim, however, sounds in medical malpractice rather than discrimination, with Pew simply alleging that prison officials failed to provide him with necessary and adequate accommodations to care for his various medical conditions. Such averments are inadequate to state a claim under the ADA in this prison medical setting. Indeed, it is well-settled that “the [ADA] would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners . . . [t]he ADA does not create a remedy for medical malpractice.” Iseley v. Beard, 200 Fed.Appx. 137, 142 (3d Cir. 2006) quoting Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996).
Therefore, when an inmate “does not claim that he was excluded from any program on the basis of his disability, [but] [r]ather he claims that he was denied medical treatment for his disabilities, [his claim] is not encompassed by the ADA's prohibitions” and should be dismissed. Id. As the Court of Appeals has observed in affirming the dismissal of a similar ADA claim brought by a state prisoner and grounded on allegations of medical malpractice or medical neglect:
To establish a violation of Title II of the ADA, an inmate must allege that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. See 42 U.S.C. § 12132. P[laintiff]'s complaint asserted that defendants violated the ADA and failed to allege any facts that demonstrated that the alleged inadequate or improper medical care he received was because of a disability. Consequently, dismissal of this claim was appropriate.Pierce v. Pitkins, 520 Fed.Appx. 64, 67 (3d Cir. 2013); See, e.g., Brown v. Deparlos, 492 Fed.Appx. 211, 215 (3d Cir. 2012) (same); Brown v. Pennsylvania Dep't of Corr., 290 Fed.Appx. 463, 467 (3d Cir. 2008).
These principles apply here and are fatal to this particular ADA claim. Since, fairly construed, Pew's amended complaint does not allege discrimination because of a disability, but simply asserts a failure to adequately treat a disabling condition, it fails to state a claim under the ADA, and Pew's ADA claim should be dismissed. Mercaldo v. Wetzel, No. 1:13-CV-1139, 2013 WL 8022574, at *7-8 (M.D. Pa. Dec. 4, 2013), report and recommendation adopted in part, rejected in part, No. 1:13-CV-1139, 2014 WL 1051530 (M.D. Pa. Mar. 17, 2014).
Simply put, with respect to many of his claims, Pew has neither shown that he faces an imminent danger of serious bodily injury, nor has he plausibly stated a claim upon which relief may be granted. Therefore, his amended complaint should be dismissed and his request for leave to proceed in forma pauperis should be revoked.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to revoke Pew's in forma pauperis status and motion to dismiss this complaint (Docs. 74 and 76) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.